Ruecker v Ruecker, 2016 ABQB 326

Court of Queen ’ s Bench of Alberta Citation: Ruecker v Ruecker, 2016 ABQB 326 Date: 20160615 Docket: 4804 010573 Registry: Grande Prairie Between: Jill Elaine Ruecker, also known as Jill Elaine Parker Plaintiff - and - Jason Austin Bladur Ruecker Defendant/applicant Corrected judgment: A corrigendum was issued on June 28, 2016; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Endorsement of the Honourable Madam Justice J.B. Veit _______________________________________________________ [ 1 ] In morning chambers, Mr.

Ruecker asks for shared parenting of his 4 children, aged 15, 13, 9 and 7. The parties separated in May 2015 after 17 years of marriage. They live in a very small, very northern, farming community. All the children attend the same school. At separation, the father moved out of the matrimonial home to his parents' home, approximately 4 kms away. During the summer of 2015, the parents shared parenting on a week on/week off basis. [ 2 ] In September, Ms. Ruecker commenced divorce proceedings and applied, amongst other relief, for primary care of the

children. Although the affidavit in support of her application was sworn on October 1, 2015, it was only served on October 8, 2015; the returnable date was October 16. Therefore, although the affidavit was served in compliance with the time rules, service so close to the returnable date did not give Mr. Ruecker much time to comply with the requirements of R. 12.44(2). In the event, Mr. Ruecker did not file an affidavit in relation to that application.

The October 16 hearing proceeded on an interim without prejudice basis. [ 3 ] In relation to parenting, the October order provided that the father would have overnight access every Tuesday and alternate week-end access; he was also to share equally all school holidays, including summer holidays. The mother had asked for no week-time overnights; she had stated in her affidavit: We have been sharing the kids through the summer and since school has started.

The kids go to his place one or two nights a week and then we have been taking turns on the weekend Our oldest child . . . does not want to or like to stay the night there so she comes home at night or doesn't go at all. Our oldest son . . . has voiced that he would rather not have to sleep there either during the week, but thus far I have made him go if the younger 2 are going. [ 4 ] In December, 2015, this court signed a consent order relating to Christmas access, international trips involving the children, and other related matters.

It also stated that the parties would attend at least one session of mediation and that neither parent was entitled to bring a parenting application prior to March 7, 2016. [ 5 ] The parties attended one mediation session; Ms. Ruecker declined any further participation. [ 6 ] In February 2016, this court signed a consent order relating to a Hawaii trip for the father and the children. All the children went on this trip.

The order set out detailed information about the travel plans, hotel reservations, contact numbers, etc. [ 7 ] In March 2016, the applicant father moved into what had formerly been a rental home owned by the parties which home is adjoining the matrimonial home. Perhaps understandably, the father has a different impression of the children's wishes than the mother.

In his affidavit in support of his application, the father states that, despite the first refusal provision of the December 2015 consent order, the father states that the mother has never exercised that provision despite having been away from the children for the stated period.

He swears that the mother has made his time with his children more difficult, for example, by moving their horses onto her boyfriend's property and by muting their IPads so that he cannot call or Facetime with them. [ 8 ] In response, the mother swears: “I believe that it was important that the children spend as much time as possible with both of us”.

She states that she has been very flexible with respect to “facilitating as much access as possible between [the father] and the children” [ 9 ] At the hearing, the mother proposed shared summer parenting on an 11 day on, 11 day off period, with the father's time starting on July 11. The mother has booked the oldest child into a camp for July 11 which is when she proposed the father’s parenting would begin. [ 10 ] At the hearing, the father presented, not attached to an affidavit, the April school reports for the two older children. These reports obviously require

interpretation. However, they show that the oldest child has 75 absences and the next oldest 91 absences. Although the reports are, not unexpectedly, positive, they also highlight some areas for presumed cooperative work by the parents for improvement. For example, insofar as the older child is concerned, the teacher states that the student has completed most assignments on time, and could improve her grades by studying for quizzes and tests.

With respect to the younger child, the teacher makes the same comment about studying for quizzes and tests, and the student is working towards achieving all curriculum outcomes and went on to mention some specific difficulties the child was having. [ 11 ] The mother filed an affidavit in reply to the father’s application in which she states that the back and forth between the parents’ homes was disruptive for the children. [ 12 ] Three days would probably be required for a parenting trial; the earliest date available for a three day trial in this jurisdiction is January, 2017, but if the parties aren’t able to take advantage of that date, the earliest the trial can be held is in the Fall of 2017. 1.

On an interim, without prejudice, basis, what parenting regime is in the children's best interests? [ 13 ] On an interim without prejudice basis, shared parenting on a week on, week off, basis to begin on the Friday of the week when the children finish school with the father is in the children's best interest. [ 14 ] It’s true, as the mother argues, that a change in parenting is rarely made in morning chambers. However, there are three factors that make such a change possible in the circumstances here. The first is that the October, 2015 order was made in the expectation that it would be reviewed.

The second is that the father had not provided any evidence at the October hearing, and has now provided evidence, as indeed, has the mother. The third, and most important, is that there is no suggestion in the evidence that any regime other than a shared parenting regime would be in the children’s best interests.

The only real dispute between the parties seems to be, on the one hand, whether the father has used coarse, denigrating language about his wife in front of the children and whether the father has unwisely and inappropriately involved his children in the parenting dispute by talking to them about parental alienation, and, on the other hand, whether the mother has told one or both of the older children that, because of their age, they are entitled to make their own decisions about the amount of contact they will have with their father.

Those issues cannot be resolved in a chambers application; they need to be tried. Given the long lead times for trials in this jurisdiction, it is not in the children’s best interests to put into place a regime which does not prima facie appear to be in their best interests for a period which may be as long as one year. [ 15 ] The mother suggested an 11 day on and 11 day off regime during the summer. However, there are no holidays planned that would require an 11 day period. Weekly rotation is simpler to administer.

[ 16 ] The mother suggests that, when school resumes in September, the parties should go back to an alternate week-end regime. However, she also says that she wants the kids to spend as much time with each of their parents as possible; a shared parenting regime is the vehicle to achieve that aim. [ 17 ] There is no contra-indication to a shared parenting regime that would prevent that regime from continuing on an interim basis until the parenting trial. That is the regime that will most effectively nurture the maximum contact principle. [ 18 ] There are no contra-indications to shared parenting.

On the contrary, the physical proximity of the households makes shared parenting extremely practical. Moreover, the week on and week off

schedule will prevent any school week disruptions which the mother reported. [ 19 ] The mother states that she believes that the father’s only interest in shared parenting is because of its potential financial advantage to him. On the one hand, that position does not recognize the very great involvement the father has always had with his children, including farming and rodeo activities, hockey, and other activities in the community.

On the other hand, the length of the marriage coupled with the fact that the mother has essentially never been employed outside the home during the marriage together with the fact that there are no possibilities for employment in the community where the parties live, raises the issue of the husband’s obligation to pay spousal support as a real issue, and one which is separate from child support. It is not clear that these parties have yet faced up to the financial consequences of the breakdown of the marriage.

In any event, however, what the court must focus on is the best interests of the children. [ 20 ] Moreover, having the children in each parent's home for equal time during the extended period until a trial can be scheduled will better allow a court to make a decision about what is in the children's long term interests going forward as the court will be able to see how the children develop at school and in their community while in the care of each parent. [ 21 ] As indicated during the hearing, there does not seem to be any point in a special chambers hearing in the circumstances here.

To the extent that the parties have a dispute about parenting, that dispute appears to be fact-based, and therefore one which requires a trial. Given that the parties have already been separated for over a year, it would make more sense for the parties, and be a better use of scarce court time, to set the overall dispute down for trial as soon as possible so that parenting issues, support issues and matrimonial property issues can be heard as soon as possible.

I therefore encourage them, with the help of their lawyers to book a trial date as soon as possible. [ 22 ] It goes without saying that the court’s earlier order which prevents contact by the father with the mother except to deal with parenting issues and that even those contacts shall be in writing, continues in place. The mother has many grievances against the applicant as a husband, just as the applicant has many grievances against the respondent as a wife. Both of them have the maturity to understand that their children deserve to be spared the burden of sharing in those disputes. 2.

Should the court order a bilateral assessment? [ 23 ] The father asks for what we used to call a bilateral assessment and we now call a Parenting Time and Parenting Responsibility Assessment. [ 24 ] The mother says this is not necessary. I agree. There are situations in which a court needs the assistance of a parenting expert to craft a parenting regime that will meet the needs of particular children. This is not such a case.

This is an ordinary, indeed, one might say a thankfully ordinary, case where the children have no special needs, there are no physical or other impediments to implementing the maximum contact principle, and both parents appear to accept that principle as the one which best answers their children’s needs. 3.

Should the court order a therapeutic intervention for the oldest child? [ 25 ] The mother asks for an Intervention under PN#7, in particular a therapeutic intervention, to help the oldest child adjust better to the parties’ separation. [ 26 ] In my opinion, this is not a situation which calls for a PN#7 Intervention. As that Practice Note indicates, these interventions are appropriate only in a small minority of divorcing families where there is a state of high conflict, where an intervention is required, and where the court requires assistance from a parenting expert.

This is not a case of high conflict: the mother has decided to terminate the marriage and the father resents that decision, but the parties have been able to tolerate one another more or less civilly and to more or less have recourse only to legal means to advance their separate points of view. The court understands that a 15 year old child would, properly, resist being in a situation where they are asked to have allegiance to one parent against the other, a parenting expert is not needed to establish the kind of harm that would be inflicted on a child in those circumstances.

What is not clear on this application is whether either parent is putting that type of pressure on their child. [ 27 ] The court also understands that children of divorce may feel a need to protect or support a parent whom they feel is in need of such support [ 28 ] At best, then, this request is premature. While it is apparently the case that, at the moment, the oldest child does not want to visit the father, as recently as a few months ago, she went on an extended vacation with him.

By the end of September, 2016, once a shared parenting system has been re-instituted, once any restrictions on the kids going next door to see their mother or their father have been removed, once there has been a period of approximately 3 months in which neither parent will speak negatively about the other in front of the children and neither parent will talk to the children about the legal proceedings, if the oldest child still does not want to see her father, then the parents, or one of them, can bring back an application either for a therapeutic intervention or for counselling for that

child. 4. Should the court appoint a lawyer for the two older children? [ 29 ] Because of the age of the two oldest children, their apparent maturity, and the conflicting evidence from the parents about what they understand their children’s wishes to be, this is a situation where the court will appoint a lawyer for the two older children so that the children’s voices in this matter can be heard.

The children will be told that their wishes are not decisive. [ 30 ] However, in order for that consultation to take place in as serene an atmosphere as possible, a lawyer retained for the children shall not interview their children about their placement wishes until September 15, 2016 at the earliest. [Next is para. 31] 5. Costs [ 31 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision. Heard on the 13 th and 14 th days of June, 2016. Dated at the City of Grande Prairie, Alberta this 15 th day of June, 2016. J.B. Veit J.C.Q.B.A. Appearances: Mr. Glenn A.

Taylor, Taylor & Company for the applicant, Mr. Ruecker Ms. Carley A. Termeer, Stringam LLP for the respondent, Ms. Ruecker

_______________________________________________________ Corrigendum of the Endorsement of The Honourable Madam Justice J.B. Veit _______________________________________________________ The following phrase has been added to the end of paragraph [11]: ... that the back and forth between the parents’ homes was disruptive for the children.